


Loki, Murder, and Duress

by Independence1776



Category: The Avengers (2012), Thor (Movies)
Genre: Essays, Gen, Meta, Nonfiction
Language: English
Status: Completed
Published: 2013-02-02
Updated: 2013-02-02
Packaged: 2017-12-10 11:32:32
Rating: General Audiences
Warnings: No Archive Warnings Apply
Chapters: 1
Words: 1,113
Publisher: archiveofourown.org
Story URL: https://archiveofourown.org/works/785591
Author URL: https://archiveofourown.org/users/Independence1776/pseuds/Independence1776
Summary: <blockquote class="userstuff">
              <p>An exploration of why Loki is guilty of murder in <em>Thor</em> and what him being under duress in <em>The Avengers</em> means legally. Duress is not a "get out of jail free" card.</p>
            </blockquote>





	Loki, Murder, and Duress

**Author's Note:**

> This started off as a comment in response to [this post on Tumblr](http://g-slash.tumblr.com/post/35055049304/hey-guys-heat-exhaustion-symptoms-confusion), but became rather unwieldy as a reply and also went off on a tangent. I originally posted it to my Tumblr, and it has been minorly edited from there.
> 
> To make things abundantly clear beforehand: I like Loki. I like exploring the motivations behind his actions, both in _Thor_  and _The Avengers_ , and I don’t think he’s entirely evil. He is, however, not a good person. Also, I am not a lawyer.

That post posits one possible method of why Loki chose to lead the invasion in _The Avengers_. It’s a solid one, though I do take issue with the fact that heat exhaustion works particularly well because he’s a Frost Giant when there’s no indication he was ever in that form, as he is only ever called “Asgardian.” (Although it could be argued that he was only allowed to resume his Asgardian form after he broke. His Asgardian form is not a glamor, but a full shapechange, else Loki would have realized the truth earlier given that one of his specialties is illusion.) Either way, I don’t have a problem with the conclusion.  
  
I _do_  have a problem with some of the reasoning.  
   
This, in particular:  
   
 _Sure, post-Thor, Loki is emotionally unstable, and maybe a little nuts, but he wasn’t a murderer.  The only reason he went after Jotunheim is because he was having identity issues.  Murder wasn’t something that was normal in his repertoire, yet we see him doing it frequently in The Avengers._  
   
He murders in _Thor_ , starting with the two guards in the Vault. Loki was a prince who had access to said Vault (see: no one stopping him when he went to pick up the Casket to find out why his hand turned blue). He would know the guards’ schedule, and would know that they would be there during the coronation, because the business of protecting something goes on no matter what. He knew that two guards against three Jotunn would have very little chance of survival. He may have seen it as a necessary but unfortunate sacrifice in order to prevent something worse. It could have been an accident, though I doubt it given the above. Either way: Loki’s actions led directly to their deaths.  
   
Also, Loki flat-out tried to kill Thor. And, in fact, Thor did die. The people of Puente Antiguo would have died had they not been evacuated. We don’t know how many-- if any-- agents died when the Destroyer appeared.  
   
Finally: Loki murdered Laufey in cold blood. He tricked Laufey, and let Laufey know that _right before_  he killed him.  
   
Even if an insanity defense was successfully argued for the above, Loki would still be locked up-- in an Asgardian equivalent of a psychiatric hospital, because he is a danger to those around him and himself. (All of this ignores the fact that he tried to commit genocide while insane, which is something I do not feel capable of discussing outside of fiction.)  
   
Furthermore, Loki was raised in a warrior culture in which it is perfectly acceptable to kill your enemies on the field of battle. In his mind, he's fighting a war against SHIELD. And SHIELD regards itself as being at war with Loki. (See: him branded-- correctly-- as a war criminal.)  
   
That said, to the duress part:  
   
If Loki is indeed just trying to survive because the alternative is worse, then everything he did in _The Avengers_  is under duress. And the thing about duress? It’s not a “get out of jail free” card.  
   
From [Russell Shankland’s article](http://webcache.googleusercontent.com/search?q=cache:eu_SBTyl-u8J:http://www.law.northwestern.edu/jclc/backissues/v99/n4/9904_1227.Shankland.pdf+us+duress+legality&hl=en&ct=clnk) “Duress and the Underlying Felony” in the _The Journal of Criminal Law and Criminology_ , Volume 99, Issue 4, page 1235:   
   
 _To invoke a duress defense, a defendant must typically satisfy three elements.  First, he must face “an immediate threat of death or serious bodily injury.” Second, he must possess “a well-grounded fear that the threat [will] be carried out.” Third, the defendant must enjoy no reasonable opportunity to escape the threatened harm. Some jurisdictions also require that the defendant not have recklessly placed himself in the threatening situation._  
   
Loki would pass the first two elements. He would fail the third. He could have put down the scepter and surrendered to SHIELD immediately upon arriving in the facility. He could have remained aboard the helicarrier and cooperated (including telling them that he was not doing this of his free will). The fourth element, I believe, does not apply here-- though someone cold-hearted enough _could_  argue for it.  
   
The only way he would pass the third is for him to argue that there is literally nowhere for him to escape to, and humanity cannot hope to protect him. _But_  it means he should have turned himself over to Thor at the first available time and not continued fighting. He didn’t.  
   
As for Loki’s murders and the duress defense, Shankland says on page 1237, “ _Most states forbid the duress defense for murder. Federal courts and the U.S. military justice system follow this common law rule as well_.”  
   
Given that Loki invaded and destroyed a federal facility, attempted to destroy another one, and attacked New York City, he would be tried in the federal court system. He would still be liable for the murder of Coulson, the agents, and everyone else he killed. His other crimes may be excused, but not those. (I do mean excused-- according to the article, the majority thinking is that duress constitutes an excuse, not a justification.)  
   
Now that we’ve established that Loki is in fact legally liable, we have one more legal problem: Odin still claims him as his son, and thus Loki has diplomatic immunity.  (And that apart from the fact that there is likely no jail on Earth that could hold him even long enough for him to come to trial.)  
   
Diplomatic immunity, too, doesn't mean he's not guilty. It simply means he can't be arrested and tried for his crimes. (According to [this chart from the State Department](http://web.archive.org/web/20070315084126/http://www.state.gov/m/ds/immunities/c9127.htm), the only thing people with full diplomatic immunity can be legally held accountable for are traffic tickets.) However, foreign governments can revoke immunity and allow the person to be put on trial. Odin obviously didn't. (It is not unheard of for those diplomats recalled to be put on trial in their own country, and Fury implies Odin intends to do that.)  
   
Loki may very well have been-- and probably was, though to what degree is arguable-- coerced into leading the invasion, but he is still guilty of the crimes he committed. (I do not know how full mind control would be taken into account. As I dislike that theory-- I find it too convenient, especially given the Other threatened him with torture if he didn't complete his job, something that wouldn't need to have happened if he was controlled-- I do not discuss it. Nor do I know how duress works in Germany.)  
   
To sum up: Loki’s behavior in _Thor_ is consistent with his behavior in _The Avengers_  and vice versa. He is legally liable for his actions in both movies, even if he was under duress in the latter movie.


End file.
